Levy et al v. A.O. Smith Water Products Co. et al

Filing 9

OPINION AND ORDER: The Clerk of the Court is directed to close this motion (Docket No. 3), and this matter is remanded to the New York State Supreme Court for New York County. (Signed by Judge Shira A. Scheindlin on 7/13/2012) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X
PAUL LEVY and ROSLYN LEVY,
Plaintiffs,
OPINION AND ORDER
- against­
12 Civ. 5152
A. O. SMITH WATER PRODUCTS CO.,
et at,
Defendants .
._-------------------------------------------------- )(

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
On July 2,2012, defendant Crane Co. ("Crane") removed this

asbestos-related tort action to this Court, invoking the federal officer removal
statute, section 1442(a)(1) of Title 28 of the United States Code. Plaintiffs Paul
and Roslyn Levy now move to remand the suit to state court. For the reasons set
forth below, plaintiffs' motion is granted.
II.

BACKGROUND
On or about April 17, 2012, the Levys filed this lawsuit against Crane

and many other defendants in the Supreme Court of New York, County of New

1

York.1 In November of 2011, Paul Levy was diagnosed with lung cancer, which
the Levys contend was caused by asbestos exposure.2 The Levys’ claim is based
on alleged exposure from asbestos-containing products, or the insulation on
equipment, manufactured by the numerous named defendants, including Crane.3
They allege, more specifically, asbestos exposure during the construction and
repair of naval vessels between 1951 and 1966.4 Paul Levy lists eight ships that he
worked on during this period: the U.S.S. Bennington, the U.S.S. Oriskany, the
U.S.S. Constellation, the U.S.S. Independence, the U.S.S. Saratoga, the L.P.D. 1
(Raleigh), the L.P.D. 4 (Austin), and the L.P.D. 5 (Ogden).5 Paul Levy worked as
a pipefitter on those vessels and in the Brooklyn Navy Yard.6
The Levys allege that the above information, made available on April
24, 2012 in plaintiffs’ responses to Defendants’ Fourth Amended Standard Set of
Interrogatories (“interrogatory responses”) , is sufficient to have put Crane on
1

See Complaint, Ex. 1 to 6/6/12 Declaration of Alani Golanski,
plaintiffs’ counsel (“Gol. Dec.”), at 1.
2

See 4/24/12 Responses to Defendants’ Fourth Amended Standard Set
of Interrogatories (“Inter. Resp.”), Ex. 4 to Gol. Dec., at 5.
3

See id. at 9.

4

See id. at 8.

5

See id.

6

See id. at 20.
2

notice of the removability of the action — the availability of the federal officer
removal statute.7 As a result, they argue that the removal is untimely.8 Crane
contends that this information was insufficient, and that Crane would have been
required to assume or infer additional factual information in order for the
interrogatory responses to serve as notice of removability.9 Rather, Crane
suggests, the Supplemental Discovery Responses, which were served June 14,
2012, put Crane on notice of removability by alleging far more specific
information including that Paul Levy had worked with Crane valves.10
III.

APPLICABLE LAW
A.

Section 1446(b)(3)
Under 28 U.S.C. § 1446 (b)(3),
[I]f the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.

The Second Circuit requires that “an amended pleading . . . or other paper,” from

7

See Gol. Dec. ¶ 12.

8

See id.

9

See Crane Co’s Opposition to Plaintiff’s Emergency Motion to
Remand (“Crane Opp.”), at 3.
10

See id.
3

which removability may be ascertained, “‘enable[] the defendant to intelligently
ascertain removability from the face of such pleading.’”11 “‘A pleading enables a
defendant to intelligently ascertain removability when it provides the necessary
facts to support the removal petition.’”12 This standard “‘does not require a
defendant to look beyond the . . . pleading for facts giving rise to removability.’”13
B.

Federal Officer Removal
Ordinarily, the well-pleaded complaint rule dictates that a defendant

may remove an action from state court to federal court only if the case could have
been filed in federal court in the first instance.14 Thus federal question jurisdiction
may be invoked only “‘when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.’”15 Suits against federal officers are an

11

Moltner v. Starbucks Coffee Co., 624 F.3d 34, 37 (2d Cir. 2010)
(quoting Whitaker v. American Telecasting, Inc., 261 F.3d 196, 205–06 (2d Cir.
2001)).
12

See id.

13

See id.

14

See City of Rome v. Verizon Commc’ns, Inc., 362 F.3d 168, 174
(2d Cir. 2004) (citation omitted).
15

Vera v. Saks & Co., 335 F.3d 109, 113 (2d Cir. 2003) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). Accord Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908).
4

exception to this general rule.16 “Under the federal officer removal statute, suits
against federal officers may be removed despite the nonfederal cast of the
complaint; the federal-question element is met if the defense depends on federal
law.”17
The federal officer removal statute provides that “[t]he United States
or any agency thereof or any officer (or any person acting under that officer) of the
United States or of any agency thereof, sued in an official or individual capacity
for any act under color of such office” may remove to federal court.18 If the
defendant moving for removal is not a federal officer or agency, three conditions
must be satisfied for removal to be appropriate. First, the defendant must show
that it is a “person” as that term is used in section 1442(a)(1).19 Second, the
defendant must offer a colorable federal defense.20 Third, “it must establish that it
was ‘acting under’ a federal officer, which subsumes the existence of a ‘causal

16

See Isaacson v. Dow Chemical Co., 517 F.3d 129, 136 (2d Cir. 2008).
Accord Jefferson County v. Acker, 527 U.S. 423, 431 (1999).
17

Id.

18

28 U.S.C. § 1442(a)(1).

19

See In re Methyl Tertiary Butyl Ether (“MBTE”) Prods. Liab. Litig.,
488 F.3d 112, 124 (2d Cir. 2007).
20

Id. (citing Mesa v. California, 489 U.S. 121, 129 (1989)).
5

connection’ between the charged conduct and asserted official authority.” 21 While
other removal statutes are interpreted narrowly,22 the Supreme Court has
emphasized that “the federal officer removal statute is not narrow or limited.”23
Indeed, “the policy favoring removal ‘should not be frustrated by a narrow,
grudging interpretation of § 1442(a)(1).’”24 Nevertheless, the Supreme Court has
limited federal officer removal where a defendant claims only that it complied with
federal regulations or rules issued by federal regulatory agencies.25
IV.

DISCUSSION
The Levys have adequately demonstrated that notice was given to

Crane of the removability of this action on April 24, 2012, and the removal is
21

Id. (citing Willingham v. Morgan, 395 U.S. 402, 409 (1969)).

22

See California Pub. Employees’ Ret. Sys. v. WorldCom, Inc., 368 F.3d
86, 100 (2d Cir. 2004).
23

Willingham, 395 U.S. at 406.

24

Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (quoting
Willingham, 395 U.S. at 407). Accord Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1253 (9th Cir. 2006) (“Because it’s so important to the federal
government to protect federal officers, removal rights under section 1442 are much
broader than those under section 1441.”).
25

See Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 153 (2007) (“A
private firm’s compliance (or noncompliance) with federal laws, rules, and
regulations does not by itself fall within the scope of the statutory phrase “acting
under” . . . that is so even if the regulation is highly detailed and even if the private
firm’s activities are highly supervised and monitored.”).
6

untimely. Paul Levy’s interrogatory responses state that he was exposed to
asbestos while working as a pipefitter on naval vessels with products manufactured
by the defendants.26 These responses were sufficiently specific to put Crane on
notice.27
First, Crane satisfies the personhood requirement.28 Second, the facts

26

See Inter. Resp. at 8–9. See also Simpson v. AWC 1997 Corp., No.
1:08 Civ. 545, 2008 WL 2884999, at *2–3 (N.D.N.Y. July 23, 2008) (determining
that defendants had been put on notice of removability by interrogatory responses).
27

See Simpson, 2008 WL 2884999, at *2–3 (finding that a defendant
could intelligently ascertain removability from the following facts: “(1) Plaintiff’s
years of employment; (2) his claim that he was injured by exposure to asbestos; (3)
that his exposure to asbestos was primarily from working on submarines; (4) that
he worked on specific Navy submarines; (5) that some of the asbestos exposure
came from turbines; and (6) information from which [defendant] could (and
actually did) determine whether it manufactured turbines on those ships for the
Navy.”). See also Viscosi v. American Optical Corp., No. 3:07 Civ. 1559, 2008
WL 4426884, at *6 (D. Conn. Sept. 29, 2008) (finding that removability could be
ascertained from the information that a plaintiff was exposed to asbestoscontaining products while working in the Navy — during a specific time period on
specified ships — and that these products were manufactured by defendants and
supplied to the employers of plaintiff); Pantalone v. Aurora Pump Co., 576 F.
Supp. 2d 325 (D. Conn. 2008) (finding that defendant could ascertain removability
from the allegations that plaintiff “was exposed to various asbestos-containing
products while in the U.S. Navy, at various jobsites, at various times during the
years 1951–1956,” and that defendants supplied such products to plaintiff’s
employer).
28

See MBTE Prods. Liab. Litig., 488 F.3d at 124 (“[I]t is clear that
corporations are ‘persons’ within the meaning of [section 1442(a)(1)].”).
7

provided in the interrogatories give rise to a government contractor defense.29
Crane argues that it required an allegation that Paul Levy worked specifically with
Crane valves.30 However, Paul Levy stated that he was “regularly (on a daily
basis) exposed to asbestos during the construction and repair of naval vessels . . .
[b]etween 1951 and 1966 . . . .”31 The Levys list specific ships on which Paul Levy
worked.32 Most significantly, the responses further provide that Paul Levy was
exposed to asbestos-containing pipefitting products and insulation while working
on those specific ships,33 and that named defendants manufactured such products
and insulation.34 The Levys’ responses provide a list of the products, which
includes valves.35 These facts are sufficiently particular to apprise Crane of which

29

See Viscosi, 2008 WL 4426884, at *6 (“To place the defendants on
notice for purposes of a federal contractor defense, a document must provide
‘sufficiently specific facts or allegations to allow the defendant reasonably to
identify the contracts through which the defense is being asserted.’”) (quoting
Hilbert v. McDonnell Douglas Corp., 529 F. Supp. 2d 187, 194 (D. Mass. 2008)).
30

See Crane Opp. at 3.

31

Inter. Resp. at 8.

32

See id.

33

See id. at 20.

34

Id. at 9.

35

See id.
8

products, commissioned by the Navy, were at issue.36 Third, Crane did not require
any information from plaintiff to know that “Crane Co. was acting under the
direction of the Navy . . . in the design, manufacture and sale of its valves for and
to the Navy.”37
Crane relies chiefly on Barnes v. Various Defendants (In re Asbestos
Products Liability Litigation (No. VI), where the court found that removal was
timely.38 Defendants removed within thirty days of plaintiff’s filing of responses
to special interrogatories, wherein plaintiff alleged exposure from a product
manufactured by defendants.39 However, in that case, plaintiff had not named

36

See Simpson, 2008 WL 2884999, at *2–3 (finding that although
plaintiff did not specifically mention defendant’s products, “with reasonable
intelligence,” defendant could conclude that its products were on the specific ships
listed by the plaintiff and, as a major manufacturer of turbines, defendant “was
being held responsible for exposure to asbestos in and around the turbines in the
Navy submarines”). Plaintiffs do not dispute that, aside from the timeliness issue,
federal officer removal is proper in this case. See Gol. Dec. ¶ 9; Crane Opp. at 4.
To assert a government contractor defense, a defendant must demonstrate: (1) that
“‘the United States approved reasonably precise specifications’ for the military
equipment supplied by the contractor;” (2) that “‘the equipment conformed to
those specifications;’” and (3) that the defendant “‘warned the United States about
the dangers in the use of the equipment that were known to the [contractor] but not
to the United States.’” Machnik v. Buffalo Pumps Inc., 506 F. Supp. 2d 99, 102 (D.
Conn. 2007) (quoting Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
37

Defendant Crane Co.’s Notice of Removal, Ex. 3 to Gol. Dec., ¶ 10.

38

See 770 F. Supp. 2d 736 (E.D. Pa. 2011).

39

See id. at 740.
9

specific ships or alleged exposure to a type of product manufactured by defendant
in the initial complaint.40 The complaint only stated that the decedent had been
exposed to various asbestos-containing products in several locations, including a
Naval shipyard.41 As such, the complaint did not provide a “nexus between
Plaintiffs’ claims and actions allegedly taken by Defendant under the direction of a
federal officer.”42 Here, the Levys have identified, in their interrogatory responses,
exposure on specific ships, during a specific time period, and the type of products,
including valves, which were manufactured by the named defendants, including
Crane.43 As such, defendant had all the information needed to remove on April 24,
2012.
V.

CONCLUSION
For the foregoing reasons, Crane’s notice of removal is untimely. The

Clerk of the Court is directed to close this motion (Docket No. 3), and this matter is
remanded to the New York State Supreme Court for New York County.

40

See id.

41

See id.

42

Id.

43

See Inter. Resp. at 9, 20.
10

Dated:

New York, New York
July [3, 2012

11

-AppearancesFor Plaintiffs:
Alani Golanski, Esq.
Law Offices of Alani Golanski
25 Washington Street, Suite 547
Brooklyn, New York 11201
[phone]
For Defendant:
Angela Digiglio, Esq.
Kirkpatrick & Lockhart Preston Gates Ellis LLP (Lex. Ave.)
599 Lexington Avenue
New York, New York 10022
[phone]

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